THE Asian section of the Society for International Law met for two days two weeks ago in Quezon City and, before that, at the UP Law Center in Diliman, “junior” scholars presented research papers that were reviewed by “senior commentators.”
I was invited to be one of the latter. The papers were by no means “junior” — the only aptness of the term lying in the fact that most presenters were PhD or JSD candidates, although some were already holding lofty professorial ranks. I sat for the panel that took up the topic of international law in domestic courts. Two the papers had to do with domestic courts — in the case of Cambodia, a hybrid court — having to apply international criminal law. Part of the events was a lecture by Judge Yuji Iwasawa of the International Court of Justice on the workings of the ICJ delivered at the Session Hall of the Supreme Court. It was three full days of intensive international law.
In the wake of China’s intransigence about thumbing its nose at the judgment of the arbitral tribunal rejecting its ambitious and expansionary claims over the West Philippine Sea and its persistent and annoying petulance, many are not too confident about international law. Some even doubt its existence. The fact is China does bother about international law as do most of the state-elites notorious for what they would like the world to believe is their nonchalance towards the international legal order. The People’s Republic lobbied hard to become a member of the World Trade Organization — thus submitting itself to a regime of exchange governed chiefly by international law. A Chinese professor who holds a doctorate in law informed her audience that there was nothing in the Chinese Constitution that announced whether or not the People’s Republic was adopting the transformation theory — that theory that requires international law to be transformed into local law before it becomes domestically applicable — or the incorporation theory, that makes international law ex proprio vigore part of the law of the land. This notwithstanding, litigants who have recourse before Chinese courts have been known to cite guarantees and liberties enshrined in human rights covenants and treaties.
It has now become clear that the binding force of international law depends in growing measure on domestic operators and less on international enforcement mechanisms. Judge Iwasawa, in a very lucid lecture that was prefaced by very enlightening remarks by Justice Adolf Azcuna who is a member of the Commission of World Jurists, reminded his audience that it was always open to the World Court to turn to the Security Council of the United Nations for the enforcement of decisions. But because parties to a case before the court were so only because of mutual consent, most of the time there was no need for coercive measures.
The pronouncements of the ad hoc tribunals for the Former Yugoslavia and Rwanda have evolved into general principles of international criminal law. We were told by the prosecutor of the Bangladesh special court that was trying war crimes in connection with the war of separation between Pakistan and Bangladesh that the novel doctrines introduced by such landmark decisions as Tadic had been adopted by their court. In fact, not even our improvident withdrawal from the Rome Statute negates the applicability of international humanitarian law in the country. Thankfully, our legislature enacted Republic Act 9851 that has rendered criminal the very offenses of which the International Criminal Court takes cognizance. In fact, in the very same piece of local legislation, there remains a provision allowing the extradition of offenders for trial before the appropriate international tribunals.
What is therefore clearly emerging is a legal order that is international not only in trajectory but also in design. One merely has to reckon with the number of laws protective of human rights (child protection, human trafficking, Magna Carta for Women, VAWC), as well as the current configuration of trade and economic laws as a result of a more insistent international law regime. Maybe soon, this dismal, abstruse and frankly hardly helpful debate between monism and dualism with which our international law professors have tormented their students will cease to have any relevance. In fact, at present the debate centers more on the rivalry between transformation and incorporation theories. The Philippines provides a good example of a compromise: in respect to the generally accepted principles of international law, we incorporate. As regards conventional law — law arising from treaties, covenants, agreements — the rule is transformation that takes the form of Senate concurrence.
There will be arrant misbehavior and patent lawlessness — sometimes, but the very fact that miscreants and law-breakers hypocritically justify their mischief by one or the other pretext from international law is proof of the currency of the law of nations.
Once more, international law is too important, too broad and too involved a subject to be lawyers’ exclusive turf. It will flourish only with the unbridled contribution of jurists and legal scholars in the tradition of Grotius, Brownlie, Lauterpacht etc., of political scientists who study the political environment, the history and the dynamics of global relations and tell us what arrangements make sense and what do not, and of moral thinkers who must insist on the difference between right and wrong, no matter that much of international law consists in compromise!